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Transgender Legal Advisor

Divorce
After the Transition

By Carolyn Woodward

Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at CarolynWWD@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.


If a man and a woman marry, and one later discovers that he/she is transsexual, transitions, and gains legal status as being the sex opposite that of their birth, and now the same as their spouse, is the marriage still valid? Do they have to get a divorce to terminate the marriage? I have to confess that I thought the answer was obvious. After the topic was suggested, I mentioned it to my own spouse and was surprised to discover that she felt the answer to be that the marriage became invalid. They are now the same sex, no state recognizes same sex marriages as of yet, so their marriage would no longer exist. This was the line of her reasoning. It is certainly logical, but it brings one to an erroneous conclusion.

The answer is, in brief, that you still need to get a divorce.

In discussing why, let's start with the fundamental matter of what constitutes a legal marriage. A marriage is, in essence, a personal relationship created by virtue of a civil contract between a man and a woman, both of whom must consent to the marriage and, by inference, be competent to give that consent. These are pretty much the common requirements, at least in this country. (I'm sure there are places still where the parents contract the marriage and the parties have no say at all, but we won't go there.) The details of how the relationship is formed vary from state to state, but all require a consenting man and woman.

Once the marriage is entered into, it is valid until terminated. Marriages are terminated in one of three ways: by the death of either party; by dissolution (divorce); or by annulment (judgment of nullity). Change of sex is not something which will terminate a marriage, or cause it to be nullified. It will certainly provide grounds for a divorce, and may even provide grounds for an annulment, but a court decree is still required. So if you don't get the divorce or nullity, you are still married, though you may both now be women, or men.

I don't think I have to go into too much detail about what a divorce is. It is a court ordered termination of a valid marriage. It requires some kind of grounds, which will vary from state to state. Here in California there are two - irreconcilable differences and incurable insanity - basically divorces will be granted just because one or the other person wants out. Some other states also have this "no fault" divorce system, or a variation thereof. Others require a showing of good cause - defined in their statutes. I would be very surprised if SRS could not be made to fit one or more of those grounds no matter where you live.

What about an annulment? It does what the term implies - it nullifies the marriage so that, legally, it never existed. Wouldn't that apply in the case where the two spouses are now of the same sex, and can't form a legal marriage? The answer is still "no." Remember, a marriage is valid until terminated by death, divorce, or annulment. The basis of an annulment is that the marriage was not valid when it was created. Even then, some forms of invalidity can be cured by circumstances occurring after the marriage. Ok, I know I'm losing people here, so I will explain.

There are two categories of marriages subject to a judgment of nullity - they are void and voidable. SRS can not make a marriage void but may, as will be seen in a moment, provide grounds for a voidable marriage. And the difference between the two is?

A void marriage is one which will not be recognized as being valid in the first place, and which the law will not permit to be ratified, or validated, at a later date. There are, traditionally, two grounds for a void marriage. These are incestuous and bigamous marriages. Even though the man and woman may consent to the marriage, and take the necessary steps to formalize it, the law says these marriages are not recognized because they are illegal in the first place. There is one small loophole in the case of a bigamous marriage. That's the situation where one of the spouses started a divorce prior to the marriage, but never finished it - usually by forgetting to get a final decree - but the person believed he or she was divorced. This is fixed by the issuance of a nunc pro tunc, or backdated, divorce decree which states, in essence, that an error is being corrected and declares the party to have been divorced as of a date prior to the beginning of the current marriage. But unless these precise circumstances exist, the marriage is still void.

I have read arguments to the effect that if the marriage is void, then the spouses can just walk away from it without a court decree. I don't know about that, but anyone who does that is a fool. There are still property issues, perhaps child support, custody and visitation issues, and there is still a marriage certificate in the public records. The rest of the world does not know the marriage is void, and that could create complications. The judgment of nullity tells the world that these people were never validly marriage, and the court can resolve the issues involved in separating.

This last argument does not apply to the situation of voidable marriages, where a court must make a determination as to whether the marriage will be voided, or whether it has been ratified (in which case a divorce must be sought). This is the arena in which SRS could provide the grounds for an annulment.

Voidable marriages have specific grounds as well. These traditionally include: a sincere but mistaken belief that the former spouse is dead - and the spouse turns up alive (the belief in the death can be based on circumstances or prolonged total absence, of a length determined by statute, after which the spouse is considered deceased); lack of capacity (a minor enters into a marriage without proper consent, or a person is mentally ill to the point where they are incompetent to consent); fraud; force; or the widely known physical, and incurable, impediment to the marriage relationship (commonly known as inability to consummate the marriage). If any of these are to apply, they must exist at the time of the marriage.

These are voidable, as opposed to void, because they are subject to validation, or ratification. A minor who reaches the age of majority and continues in the marriage, for example, ratifies the marriage. When the presumed dead spouse shows up, the other can choose whether to continue the current marriage. If after knowledge of the fraud, the cessation of the force, or knowledge of physical incapacity, the other party continues in the marriage, it can be considered ratified and the court has the power to deny an annulment.

Fraud is the possibly which could be considered in this discussion. If a person, at the time of the marriage, knows they are TS, and that they are going to, or know they are very likely to, go through with the process either to the point of living full time as a woman, or to surgery, and did not tell their spouse prior to the marriage, then the spouse could claim fraud as a ground for a nullity. If the spouse discovered the intent to transition was there, but chooses to continue the marital relationship, this may be lost as a ground for a nullity. If the spouse later decides to terminate the relationship, then a divorce would be appropriate.

In summary, if married as male and female the couple must formally terminate the marriage, if it is to be terminated, even though the transitioning spouse is now, legally, of the same sex as the non-TS spouse. It is not automatic. The above may provide some guidance as to possible mechanisms, but the effort must be taken or the marriage will continue, at least as a legal entity if not in fact.

Finally, as usual, I must remind you that this is a general discussion of the issues and not advice as to what you should do. Always consult a lawyer licensed to practice in your state in order to address your specific situation.

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